Jump to content


Help required with County Court Action by Cabot (Monument)


arbo
 Share

style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 4515 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

Not really. I understand that a fee is to be paid in respect of a counter claim - but I am really happy to do it for the love of my poor wife who has got herself into a tangle.

Link to post
Share on other sites

  • Replies 51
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

You seem to be doing well, they cannot attempt to wriggle out of their obligations and yo uneed to stress this to the judge.....I have included some possible useful information here....

 

Law Of Property - s136 Legal assignments of things in action

(1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-

(a) the legal right to such debt or thing in action;

(b) all legal and other remedies for the same; and

© the power to give a good discharge for the same without the concurrence of the assignor:

Provided that, if the debtor, trustee or other person liable in respect of such debt or thing in action has notice-

(a) that the assignment is disputed by the assignor or any person claiming under him; or

(b) of any other opposing or conflicting claims to such debt or thing in action;

he may, if he thinks fit, either call upon the persons making claim thereto to interplead concerning the same, or pay the debt or other thing in action into court under the provisions of the Trustee Act, 1925

Rights and Duties

CCA74 s189(1)

“ creditor “ means the person providing credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement, includes the prospective creditor;

CCA74 189 (1)

“ debtor “ means the individual receiving credit under a consumer credit agreement or

the person to whom his rights and duties under the agreement have passed by

assignment or operation of law, and in relation to a prospective consumer credit

agreement includes the prospective debtor

 

  • It's an application form, not an agreement. (I know that an application form can become an executed agreement, but it needs to have the prescribed form and content required of a normal agreement and contain the prescribed terms)

Improper execution under s.61(1)(a) with an application for an Enforcement Order under s.65(1) being precluded under s.127(3) due to missing prescribed terms.

9. The agreement is an application form for credit and as such is void by virtue of s.59 Consumer Credit Act 1974;

 

“59.—(1) An agreement is void if, and to the extent that, it purports to bind a person to enter as debtor or hirer into a prospective regulated agreement.”

 

10. The agreement is not in the proper prescribed form, as set out in s.60 & s.61 of the Consumer Credit Act 1974 and the Consumer Credit (Agreement) Regulations 1983 (SI 1983/1553) made under the Act – in that;

10.1. The agreement does not contain the prescribed terms contained within s.60 of the Act;

10.1.1. The rights and duties conferred or imposed on the Claimant by the agreement; (s.60(1)(a) Consumer Credit Act 1974)

10.1.2. The protection and remedies available to the Claimant under the Act; (s.60(1)© Consumer Credit Act 1974)

10.1.3. Rate of interest applicable; (Sch 6, Para 4 of Consumer Credit (Agreements) Regulations 1983)

10.1.4. Method, mode or periods of repayment; (Sch 6, Para 5 of Consumer Credit (Agreements) Regulations 1983)

 

11. The agreement has been improperly executed in that it does not fully comply with s.60 and s.61 CCA 1974, or the regulations made under that Act.

 

12. The Defendant is, therefore, unable to enforce the agreement without a Court Order under s.65(1).

 

13. The Court is excluded from making such an Enforcement Order under s.127(3);

 

“(3) The court shall not make an enforcement order under section 65(1) if section 61(1)(a) (signing of agreements) was not complied with unless a document (whether or not in the prescribed form and complying with regulations under section 60(1)) itself containing all the prescribed terms of the agreement was signed by the debtor or hirer (whether or not in the prescribed manner).”

 

14. The Court is excluded from making such an Enforcement Order under s.127(4)(b), in that antecedent negotiations took place with the creditor prior to the agreement being sent for signing, that signing taking place away from the creditors’ premises making the agreement cancellable as per s.67 of the Consumer Credit Act 1974 and the regulations there under;

 

“(4) The court shall not make an enforcement order under section 65(1) in the case of a cancellable agreement if—

(b) section 64(1) was not complied with”

 

15. Any application for an Enforcement Order under s.65(1) of the Act, as a result of the improper execution under the Act, should be dismissed under s.127(1)(i), due to the prejudice caused to the Claimant, namely;

a) The Claimants pleadings regarding the defaulting and termination of the account, outlined in paragraph 16-21 of this statement, specifically;

i. That the account has been improperly and unlawfully defaulted and terminated; (s.88/s.98 of the Consumer Credit Act 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993)

ii. This improper default and termination has effected (and continues to effect) the Claimants reputation and credit rating held by credit reference agencies;

iii. The Defendants failure to reply to, or to unconditionally comply with, a Statutory Notice issued by the Defendant pursuant to s.10 and s.12 of the Data Protection Act 1998, requiring it to remove this information from its own records and to cease from continuing to process or share that information.

b) The Claimant disputes the balance of the account, as outlined in paragraph 16 of this statement;

 

16. The Defendant disputes the balance of the account, as during the period in which the account was operating the Defendant debited charges to the account in respect of purported breaches of contract on the part of the Claimant and also charged interest on the charges once applied. The Claimant understands that the Defendant will contend that the charges were debited in accordance with the terms of the contract between itself and the Claimant and accordingly puts the Defendant to strict proof of such terms existence. The Claimant contends:

a) No such contractual provision exists to allow the Defendant to levy such charges;

b) Where there is a contractual provision that permits the Defendant to levy such charges, this provision is unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations (1999) and the Common Law of penalty because they are a disproportionately high sum in compensation compared to the cost of the purported breach; are not a genuine pre-estimate of cost incurred by the Defendant; exceed any alleged actual loss to the Defendant in respect of any breaches of contract on the part of the Claimant; and are not intended to represent or are related to any alleged actual loss, but instead unduly enrich the Defendant, which exercises the contractual term in respect of such charges with a view to profit; and

c) Accordingly the Claimant puts the Defendant to strict proof that every charge made to the account was valid and lawful.

d) The Claimant avers that any Default or Termination Notice sent would have included these charges, invalidating that Notice due to this unlawful application.

 

17. The Defendant has failed to fully comply with the Claimant’s request for information to substantiate the process taken to Default the agreement, under the original s.78 CCA request.

 

18. Accordingly, the Claimant puts the Defendant to strict proof that the agreement has been defaulted and terminated in accordance with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993.

 

19. Where the Defendant is unable to supply original signed certified copies of alleged Default Notices or Termination Notices, the Claimant pleads that the agreement has been unlawfully defaulted and terminated, in that, either;

a) No Default Notice or Termination Notice has been issued, the Claimant being prepared to swear on oath that no such notice was sent or received at the time of default or termination; or

b) Where the Defendant can show evidence that Default or Termination Notices were issued, such Notices are not accurate and fail to comply with s.88/s.98 CCA 1974 and the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1993, in that the Default and Termination amounts are incorrect as per paragraph 13 of this statement

Para 49;

"The message to be gleaned from sections 65, 106, 113 and 127 of the Consumer Credit Act is that where a court dismisses an application for an enforcement order under section 65 the lender is intended by Parliament to be left without recourse against the borrower in respect of the loan"

 

Para 121;

"But the effect of the failure to comply with the requirements of the Consumer Credit (Agreements) Regulations 1983 was that the entire agreement under which FCT provided the loan to Mrs Wilson............... was unenforceable. The statutory bar on its enforcement extended to FCT's right to recover the total sum payable on redemption, which included the principal as well as interest."

 

Para 123;

"section 127(3) of the 1974 Act too, like sections 6 and 13(1) of the 1927 Act, was designed to protect unsophisticated borrowers. There is no doubt that they would be exposed to the risk of harassment by unscrupulous creditors if creditors could override the statute by appealing to the common law. I would prefer to say that it would be inconsistent with the statute to provide FCT with a common law remedy to redress the enrichment which Mrs Wilson has received at its expense"

 

Para 173;

"Parliament's intention in enacting section 127(3) of the 1974 Act was to make a loan, made under a regulated agreement, unenforceable in certain events. The courts cannot defeat that intention by allowing some alternative means of recovery."

 

21. The Claimant contends that the Wilson case ruling is intended to have the effect that creditors who do not have enforceable consumer credit agreements are not to be allowed to intimidate, harass and effectively blackmail debtors into paying monies that they do not have to pay by, for example, threatening to blacklist the credit records of debtors. The financial penalty for a lender not complying with the legislation is that they lose the right to any monies not already paid. The law lords considered the issue of unjust enrichment but decided that it was appropriate for the creditor to be financially penalised in this way.

 

EFFECT OF FAILURE TO DEFAULT AND TERMINATE AGREEMENT CORRECTLY;

 

22. Failure of a Default or Termination Notice to be accurate not only invalidates the Default or Termination Notice (Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give the Claimant a claim for damages. (Kpohraror v Woolwich Building Society [1996] 4 All ER 119)

 

4 corners of the agreement -

A valid credit agreement must contain certain terms within the signature document (s.60(1)(2) CCA 1974). These core terms are the credit limit, repayment terms and the rate of interest (SI 1983/1553 (6 Signing of agreement) which states that the prescribed terms must be within the signature document. (Column 2 schedule 6). s.61(1)(a) states the agreement must contain all the prescribed terms and be signed by both the debtor and on behalf of the creditor.

 

Further, s.127(3) CCA 1974 makes the account unenforceable if it is not in the proper form and content or improperly executed.

 

In Wilson and another v Hurstanger Ltd (2007) it was stated “In my judgment the objective of Schedule 6 is to ensure that, as an inflexible condition of enforceability, certain basic minimum terms are included which the parties … and/or the court can identify within the four corners of the agreement. Those minimum provisions combined with the requirement under s.61 that all the terms should be in a single document, and backed up by the provisions of section 127(3), ensure that these core terms are expressly set out in the agreement itself: they cannot be orally agreed; they cannot be found in another document; they cannot be implied; and above all they cannot be in the slightest mis-stated. As a matter of policy, the lender is denied any room for manoeuvre in respect of them. On the other hand, they are basic provisions, and the only question for the court is whether they are, on a true construction, included in the agreement”.

DEFAULT INFORMATION

Section 87(1) of the CCA 1974 says:

 

87.--(1) Service of a notice on the debtor or hirer in accordance with section 88 (a default notice) is necessary before the creditor or owner can become entitled, by reason of any breach by the debtor or hirer of a regulated agreement,--

(a) to terminate the agreement, or

(b) to demand earlier payment of any sum....

 

Section 88 says that the DN must be in the prescribed form and the associated regulation say what that form is.

 

Thus, if the DN is not in the prescribed form, it is invalid and, under s87, the lender has no right of action.

 

CPR3.4(2)(a) says that the court may strike out a statement of case if it appears to the court –

 

(a) that the statement of case discloses no reasonable grounds for bringing ... the claim

The requirement for a valid Default Notice to lawfully Terminate an Account whilst in default

 

1. Notwithstanding the matters pleaded above, the Claimant must under Section 87(1) of the Consumer Credit Act 1974 serve a valid Default Notice before they can demand early payment of sums not yet due under a Regulated Credit Agreement.

 

2. Under the Interpretation Act 1978 Section 7, it states:

 

Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expressions "give" or "send" or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have effected at the time at which the letter would be delivered in the ordinary course of post."

 

2. Practice Direction

Service of Documents - First and Second Class Mail.

 

With effect from 16 April 1985 the Practice Direction issued on 30 July 1968 is hereby revoked and the following is substituted therefore.

1). Under S7 of the Interpretation Act 1978 service by post is deemed to have been effected, unless the contrary has been proved, at the time when the letter would be delivered in the ordinary course of post.

2). To avoid uncertainty as to the date of service it will be taken (subject to proof to the contrary) that delivery in the ordinary course of post was effected:-

(a) in the case of first class mail, on the second working day after posting;

(b) in the case of second class mail, on the fourth working day after posting.

"Working days" are Monday to Friday, excluding any bank holiday.

3). Affidavits of service shall state whether the document was dispatched by first or second class mail. If this information is omitted it will be assumed that second class mail was used.

4). This direction is subject to the special provisions of RSC Order 10, rule 1(3) relating to the service of originating process.

 

8th March 1985

J R BICKFORD SMITH Senior Master

Queen's Bench Division

 

3. Further to point 2 above, CPR rules on service also state the required timescales to be given for serving of documents :-

 

Under CPR 6.26 First class post (or other service which provides for delivery on the next business day) is deemed to be “served” The second day after it was posted, left with, delivered to or collected by the relevant service provider provided that day is a business day.

 

4. The Default notice supplied by the Claimant is dated Friday 3rd August, to allow service in line with the statutory requirements mentioned in points 2 & 3 above, 2 working days were required to allow for 1st Class postage. Thus the Rectify date should be 14 calendar days from Wednesday 8th August, namely Wednesday 22nd August 2007, not the 14 calendar days from the date of the letter as stated in the Default notice which would have been 17th August.

 

5. I therefore put the Claimant to strict proof that any Default Notice sent to me was valid and allowed the statutory 14 clear days to rectify the breach. I also note that to be valid, a Default Notice needs to be accurate in terms of both the scope and nature of breach and include an accurate figure required to remedy any such breach. The prescribed format for such document is laid down in Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) and Amendment regulations the Consumer Credit (Enforcement, Default and Termination Notices) (Amendment) Regulations 2004 (SI 2004/3237).

 

6. The failure of a Default Notice to be accurate not only invalidates the Default Notice (Woodchester Lease Management Services Ltd v Swain and Co - [2001] GCCR 2255) but is an unlawful rescission of contract which would not only prevent the Court enforcing any alleged debt, but give me a counter claim for damages Kpohraror v Woolwich Building Society [1996] 4 All ER 119.

 

7. It is submitted that the above Default Notice served s87(1) Consumer Credit Act 1974 failed to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561).

 

8. For a Creditor to be entitled to terminate a regulated Credit Agreement where there is a breach, demand repayment in full or take any legal action to recover any monies due under the Agreement, a creditor must serve a Default Notice under section 87(1) of the Consumer Credit Act 1974 which states:

 

Section 87. Need for Default Notice

 

(1) Service of a notice on the Debtor or hirer in accordance with section 88 (a "Default Notice ") is necessary before the creditor or owner can become entitled, by reason of any breach by the Debtor or hirer of a regulated Agreement -

 

(a) to terminate the Agreement, or

 

(b) to demand earlier payment of any sum, or

 

© to recover possession of any goods or land, or

 

(d) to treat any right conferred on the Debtor or hirer by the Agreement as terminated, restricted or deferred, or

 

(e) to enforce any security.

 

9. The Act also sets out via Section 88(1), that the Default Notice must be in the prescribed form, as below:

 

Section 88. Contents and effect of Default Notice

 

(1) The Default Notice must be in the prescribed form…

 

10. The wording must make it clear that no variation is acceptable. Therefore it cannot be dispensed with as a De Minimus issue.

 

11. I note that the regulations do not allow any variation in the form of these statements and therefore it is suggested that where the statements are not as laid down in the regulations the Default Notice is rendered invalid as a consequence.

 

12. In the case of Woodchester Lease Management Services Ltd v Swain & Co - [1998] All ER (D) 339 in the Court of Appeal, the Court addressed in some detail the issue of the contents of a Default Notice and should the notice fail to comply with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) it would render the Default Notice invalid I quote the comment of KENNEDY LJ: "This statute was plainly enacted to protect consumers, most of whom are likely to be individuals" the judgment appears to confirm the consumer credit legislation made under the Consumer Credit Act 1974 as plainly enacted and set out to offer protection to the consumer. Therefore it is suggested that the failure of the Claimant to set out the Default Notice in accordance with the Consumer Credit (Enforcement, Default and Termination Notices) Regulations 1983 (SI 1983/1561) could unduly prejudice me as it failed to allow the required time to remedy the alleged default.

 

13. The Claimant’s failure to issue a valid Default Notice must surely prevent a right of action and would make any termination of the Agreement unlawful, as statute provides the procedure that must be followed. Since the Claimant has failed to adhere to statutory procedure it is averred that the Claimant does not have a right of action, and can never now have a right of action having terminated the Agreement unlawfully.

 

14. Furthermore, the Arrears Total outlined cannot be accurate, as the Balance on the Account was at least partly comprised of Unlawful Charges plus additional Charges and Interest added unlawfully whilst the Account was in Dispute. Therefore, the Arrears claimed cannot be accurate, as they are themselves calculated using a Total that was itself inaccurate.

 

15. This is at all times an Agreement Regulated by the Consumer Credit Act 1974. There is no provision in the Act that allows a large financial institution to terminate an Agreement that is in alleged default or breach simply by giving notice to the Consumer. Section 98(6) makes that quite clear. The Creditor must follow the steps outlined in Section 87 and Section 88 if they are to lawfully Default and Terminate, and enjoy the benefits of Section 87.

 

16. Finally, an invalid Default Notice cannot be remedied by simply issuing a new Default Notice. The Claimant may not serve a second effective default notice in prescribed form post-termination of the agreement. Any such second default notice will necessarily state a date by when I would be required to comply after which in default the agreement would terminate. The second default notice would therefore contain the fiction that the agreement endured when that cannot be the case, as it was terminated on XX/XX/XX. Terminating an Agreement on the back of a defective Default Notice, simply confirms the undeniable truth that Termination of the agreement by the Claimant was carried out in circumstances which then prohibited them from enjoying the benefits of Section 87, namely the opportunity to seek early Payment of a sum that was, prior to Termination, only payable in the future.

  • Haha 1

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Link to post
Share on other sites

Been offline for a bit but thanks for the intel 42man. Thanks also to IGNM - your thread was very interesting and useful. Any thoughts either of you (or anyone else) on their reply to the defence and their attempt to assert that the seperate reply card & T&C's are "documents embodying regulated agreements" and therefore valid? It worries me.

Link to post
Share on other sites

PS IGNM, there was mention of Rankine in your thread that seemed to get you a bit worried. Can you or anyone else please explain what (or who) this is?

Link to post
Share on other sites

Been offline for a bit but thanks for the intel 42man. Thanks also to IGNM - your thread was very interesting and useful. Any thoughts either of you (or anyone else) on their reply to the defence and their attempt to assert that the seperate reply card & T&C's are "documents embodying regulated agreements" and therefore valid? It worries me.

 

Unless the prescribed terms are contained in the document that was signed then the agreement is irredeemably unenforceable.

 

As far as other terms and conditions if the document that was signed referred to other conditions then they could be incorporated into it. Where it gets technical is that they could in theory incorporate the prescribed terms BUT because they are not in the document that was signed the agreement remains irredeemably unenforceable.

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

Link to post
Share on other sites

PS IGNM, there was mention of Rankine in your thread that seemed to get you a bit worried. Can you or anyone else please explain what (or who) this is?

 

One of the worst decisions in Consumer Credit law is here

 

Mishcon de Reya, Solicitors, London : News and Events : Articles : Judgment: Basil Rankine vs American Express Services Europe Limited

 

There are ways of meeting any Rankine issues (some courts have already realised what a bad judgment it is) which arise

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

Link to post
Share on other sites

IGNM - Thanks for the Rankine intel. It appears to me that the judgement is a direct consequence of the Rankines seriously p!ssing His Honour off with their attitude, rather than perhaps the real merits of their case and should be a lesson, I would suggest, in the importance of how you present yourself before the court.

 

That said I can see some similarities between the issues raised and the Reply to Defence received in our case. i.e. "unexecuted agreements" / "documents embodying regulated agreements" and the Default Notice issue. What are the ways of meeting these issues that you refer to.

Link to post
Share on other sites

There has been a development. :-)

 

Just received notice from the Court that the action was stayed on 03 June 2009 as the Claimant had not filed a reply to the defence and that if the Claimant wished to proceed they would have to apply to the Court. The letter did not mention if the Reply served on my wife and dated 10 June 2009 had been filed, but given that the letter was sent yesterday from the Court, I am assuming that they have not received the Reply from Morgan Solicitors.

 

Can anyone offer some comments or advice on the following:

 

1. If the Claimant makes an application to proceed, are there any grounds to object i.e no case to answer / late provision of info/reply etc.

 

2. How long will the action be stayed for before no further action can be taken i.e. does the action remain available for the Claimaint to apply to proceed for an indefinate period?

 

3. Should I respond to the Claimant further to the letter received from the Court stating that [any application to proceed would be objected to] / any further action would be vigorously defended, advising brief details of the defence to their reply (uneforceable agreement, no perfected assignment, the need for and lack of a default notice, unfair charges etc etc) to convince them that they were wasting their time and money in proceeding and perhaps suggesting it would be in everyone’s interest to consider the matter closed and for Cabot to write the alleged debt off and make the appropriate arrangements to have any entry not relevant to the application for a Providian Card corrected and expunged from the records of the Credit Reference Agencies?

 

As before, any assistance or advice would be warmly welcomed.

Edited by arbo
text formatting error
Link to post
Share on other sites

Hi arbo, and in reply to your PM, its tedious to open and read all those pdfs, the bottom line is...What is their POC?, what was your defence to it?...it would be helpful if you could just post those up as is.

How old is the debt?, what is it ? a credit card/ loan/ something else?....is this in Northampton court? what date did you file your defence? Who says its stayed?,did you phone the court to get this info?

Please note i have no legal training any advice i give comes from my own experience and from what i have learned on this site

Link to post
Share on other sites

Thanks for responding CCM.

 

I have posted with this message the POC, Defence & Reply to Defence (although this does not appear to have been filed with the court). My main concerns are as posts 22 & 34, I think if necessary I am fine with everything else.

 

In answer to your questions this is a credit card that was applied for in Nov 2001. A copy of the purported agreement is also attached. The claim was issued from Northampton CC. The defence was filed on 30 April 2009. A letter was received to day from the Court advising that "the case was stayed on 03/06/2009 as no response from the Claimant had been received in regards to your defence."

 

Anything else just let me know.

1 Claim Form & Defence.pdf

5 Reply to Defence.pdf

6 Reply Docs A & B.pdf

Link to post
Share on other sites

There has been a development. :-)

 

Just received notice from the Court that the action was stayed on 03 June 2009 as the Claimant had not filed a reply to the defence and that if the Claimant wished to proceed they would have to apply to the Court. The letter did not mention if the Reply served on my wife and dated 10 June 2009 had been filed, but given that the letter was sent yesterday from the Court, I am assuming that they have not received the Reply from Morgan Solicitors.

 

Can anyone offer some comments or advice on the following:

 

1. If the Claimant makes an application to proceed, are there any grounds to object i.e no case to answer / late provision of info/reply etc.

 

2. How long will the action be stayed for before no further action can be taken i.e. does the action remain available for the Claimaint to apply to proceed for an indefinate period?

 

3. Should I respond to the Claimant further to the letter received from the Court stating that [any application to proceed would be objected to] / any further action would be vigorously defended, advising brief details of the defence to their reply (uneforceable agreement, no perfected assignment, the need for and lack of a default notice, unfair charges etc etc) to convince them that they were wasting their time and money in proceeding and perhaps suggesting it would be in everyone’s interest to consider the matter closed and for Cabot to write the alleged debt off and make the appropriate arrangements to have any entry not relevant to the application for a Providian Card corrected and expunged from the records of the Credit Reference Agencies?

 

As before, any assistance or advice would be warmly welcomed.

 

 

As far as staying the claim goes - the process is that you file a defence - the court sends a copy to the claimant who have 28 days (I think) to tell the court that they want to go ahead...if they don't the case is stayed automatically until they apply to lift the stay - in the old days if the stay was for 12 months or more the claim was automatically struck out BUT I've got a vague recollection that they may have changed the rules in that regard. I'd need to do some research - you could check the CPR or even just phone the court office.

 

As far as whether you can object to the stay being lifted - probably not - certainly not in the early days - I think that the other side do it by an ex parte application (one that you don't get served with).

 

I think that as far as the defence is concerned that it will need amending at some point - but we can worry about that when we know what is happening with the claim.

 

I'm a bit concerned at the litigation friend bit...I need to check the CPR

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

Link to post
Share on other sites

Litigation friends are covered by CPR 21 - essentially the Defendant would have to lack capacity - in mental health terms - physical illness isn't enough - as I understand it the question is do they understand the nature of the proceedings and are they able to give instructions.

 

If your other half is a protected person - did they have capacity when the agreement was entered into?

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

Link to post
Share on other sites

IGNM

 

Thanks for your response, although I am not sure about your point regarding litigation friends. I have made no issue regarding my wife's capacity at the time to enter into an agreement. At the moment, with her express authority I am dealing with the correspondence on her behalf. I am not sure what happens if it goes to court, but I would like to be able to present her argument for her.

 

I will contact the court to try and find aout about the stay. I can find nothing about it in the CPR's.

 

My third point was really what do I do now, nothing but sit back and wait, or try and prempt things with a letter to the Claimant as point 3 in post 34?

Link to post
Share on other sites

IGNM

 

Thanks for your response, although I am not sure about your point regarding litigation friends. I have made no issue regarding my wife's capacity at the time to enter into an agreement. At the moment, with her express authority I am dealing with the correspondence on her behalf. I am not sure what happens if it goes to court, but I would like to be able to present her argument for her.

 

I will contact the court to try and find aout about the stay. I can find nothing about it in the CPR's.

 

My third point was really what do I do now, nothing but sit back and wait, or try and prempt things with a letter to the Claimant as point 3 in post 34?

 

In the defence at paragraph one you refer to yourself as "litigation friend" - that has a very specific meaning - under CPR 21 you can only be a litigation friend if the Defendant lacks capacity. I was trying to clarify if this was the case.

 

I am a bit concerned as to whether you can actually sign a defence on your wifes' behalf - have you filed a certificate under CPR 21(5)(3) If your wife does not lack capacity you can't act as litigation friend. If you aren't entitled to act as litigation friend and/or you haven't filed the appropriate certificate then technically I don't think that a defence has been filed. If the other side work that out they could apply for a default judgment

 

As far as sitting back and waiting is concerned - to be honest I don't think that anything that you say to the claimant will, at this point, persuade them to drop the claim. I personally would just wait and see.

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

Link to post
Share on other sites

OMG - I see what you mean (have just read the relevant part of the CPR).

 

The Court has not picked up on it. My wife is suffering from depression and I just thought that was the option to submit a defence on her behalf (& signed to say I am authorised to do so) as opposed to an solicitor (my fees are so much cheaper).

 

Any advice on what to do to try an prempt any move from the Claimant?

Link to post
Share on other sites

OMG - I see what you mean (have just read the relevant part of the CPR).

 

The Court has not picked up on it. My wife is suffering from depression and I just thought that was the option to submit a defence on her behalf (& signed to say I am authorised to do so) as opposed to an solicitor (my fees are so much cheaper).

 

Any advice on what to do to try an prempt any move from the Claimant?

 

To be honest I'm not sure...I don't know if the other side will pick up on it BUT when the case gets in front of a District Judge I'm pretty sure that a Judge will pick up on it. Lets face it if I picked up on it an experienced DJ will. At this point all that will have happened is that the papers will simply have been processed by unqualified court staff who will simply have forwarded a copy to the other side.

 

Perhaps the solution is to redo the defence take out the bit about litigation friend and put it in your wifes' name - she can sign it. Then write to the court and explain that there was a misunderstanding as to the meaning of litigation friend and enclose three copies of the new defence signed by your wife.

 

The way to deal with the litigation like this is that you can write the letters but she needs to sign them

  • Haha 1

If I've helped feel free to add to my reputation.

 

I am not a Practising Lawyer. My comments are my opinion only. You should not rely upon those comments and should always take your own professional advice from a practising Solicitor or Barrister

Link to post
Share on other sites

  • 1 month later...

Back again as their have been developments that require some knowledgeable assistance. Although this message is directed at previouls assistance providers "I've got no money", "creditcardmug" and "42man" assistance from any source would be greatly appreciated.

 

It would appear that the Claimant (Cabot) have successfully applied to have the stay lifted on the case as my wife has now received an allocation questionnaire from the local court which is to be completed and returned by no later than 07 Sept. This for me as one of the uninitiated, raises a whole host of questions.

 

1. In respect of the questionnaire itself I think I need some help in completing it for my wife for the following sections.

 

Do I need to send a copy to the opposition (sorry Claimant)? I note that my wife is expected to contact Cabot. Can this be done by email? (she is not keen on talking to them direct - will this go against her?

 

A Settlement

As my wife is defending all of the claim should she answer that she does not want to attempt to settle? If so is mediation appropriate, given the fee and her inability to pay?

 

D Case Management

I assume that the question re applications does not apply.

Witnesses - As I have corresponded with the opposition (and they have written to me), can I add myself as a witness in addition to my wife. I would also like to attend any hearing and speak on behalf of my wife - where can I request this?

I assume that the relevant track is the "fast track".

 

E Trial or final hearing

How do estimate how long this will take?

 

F Directions

Which of the list of directions from CPR 28 are appropriate and how do I complete the blanks?

 

G Costs

Can my wife claim "litigant in person" costs, does she do it here and how are they calculated.

 

H Fee

I assume as defendant there is no fee to pay.

 

I Other Information

What documents need to be attached and what are the applications referred to? Is this where I apply to make an amended defence and apply to assist my wife in court. If so I will need to refer to notes - do I mention this now? I will need to do an amended defence in response to the opposition's "Reply to Defence". Do I need to do it now, if not when - can it be left for the hearing so they are unprepared?

 

2. I will need some assistance I think with the amended defence in response to Cabot's Reply to my initial defence as suggested earlier in the thread. I am not sure what the timetable would be for this.

 

That's all for now, although I am sure there will be more. As always any help is gratefully received.

 

Thanks

Link to post
Share on other sites

PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

 

DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk/forum/content.php?65-legislation

 

IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

 

I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

 

IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.

Before you decide,consider the users here who have already offered help and support.

Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.

If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.

 

Forum rules - http://www.consumeractiongroup.co.uk/forum/forum-rules-please-read/9-forum-rules-please-read.html

Link to post
Share on other sites

Hi 42man, thanks for picking up the thread.

 

The questionnaire is a N150. Also received is a N271 Notice of Transfer of Proceedings (to the local court) & N152 Notice that a Defence has been filed. Having read through the useful threads you have directed me to, I would appreciate your comments on the following proposed reply (in red) to the N150, with my additional comments (not to be submitted with the return) in blue:

 

Have you sent a copy of this completed form to the other party: I will tick "yes" & will send a copy

 

A Settlement

1. Tick "yes". We have as you will see been in communication for a while and have proposed to the Claimant that he has no case and should drop the claim. I have had no response to this point. However I do not see any middle ground - it is "s**t or bust".

2. Tick "yes". Can't think why not - but I do not see a settlement occuring.

3. Tick "no". Can't see a mediation being successful & my wife can not afford the fee anyway.

4. Will leave blank as 1. has been ticked "yes", but perhaps could tick "No" to 1. and state that I have asked the claimant to withdraw the case - what do you think?

B Location of Trial - Tick "no". The case has already been transferred to the local court.

C Pre-Action Protocols - Tick "no" and state "This case is not covered by any approved protocol; I have tried to act reasonably in exchanging information and documents relevant to the claim."

D Case Management Information

Amount of Claim in Dispute - I will enter the full amount claimed by the Claimant

Applications - Tick "no"

Witnesses - I will enter my wife's name & "to all facts in the case" and my name & "to all facts in the case from 15 Sept 2006"

Experts - Do you wish to use expert evidence - Tick "no" & leave all other question under the Expert heading blank.

Track - Tick "fast track". The amount is for £6,853 exclg costs.

E Trial or Final Hearing - I can fill out the dates of non-availability, but have no idea on estimate of how long a hearing will take. Thought about either 1 hour or 2 hours. Any idea?

F Proposed Directions - Struggling with this one. I have checked the list contained in the Appendix to CPR 28. Do I need to complete them all & if so how? The things that my wife would like from the management of the case are

i) to be able to submit an amended defence follwoing receipt of the Claimant's reply to her original defence. I am preparing a Rejoinder stating that the points made in the reply are disputed, without actually providing detail of the argument yet, which I can use to support an application to submit an amended defence

ii) confirmation that the Claimant has provided all the evidence relied upon in the case. I beleive that the Claimant has issued all the documentation he is going to and there is therefore no need to request any, although it would help the argument re the lack of a final notice (not deemed necessary by the Claimant) if it could be confirmed that what they have provided is all they have.

iii) that I be allowed to speak on her behalf at the hearing

Are these points raised here or in Section I and how are the matters worded. In terms of agreeing the proposed directions I can submit by email and seek agreement with them if I have time.

G Costs - Leave blank.

H Fee - Tick "no". I believe as the defendant no fee is payable.

I Other Information - see F above. I could enclose the Rejoinder. I will tick "no" to intent to make any applications in the near future? or is this where application is made in respect of the items in F above.

I would be grateful of any assistance offered in the short time remaining.

Link to post
Share on other sites

Hi, sorry I can't offer much help as I've only just completed my first N149!

A couple of bits I gained, make 2 copies of the form; send an unsigned copy to Cabot, you can send the court's copy special delivery the day before it is due. I based mine on the link from 42man, I then did a search for other forms to ensure I had covered everything. I'm not sure, but are you a witness?

If you are worried you can click on the red triangle to ask the site team to check over anything.

Link to post
Share on other sites

 Share

  • Recently Browsing   0 Caggers

    • No registered users viewing this page.

  • Have we helped you ...?


×
×
  • Create New...